Matthew T. Mangino: There are limits on the president’s power to pardon

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Mar 30, 2018 at 9:54 AMMar 30, 2018 at 9:54 AM

Last week, the president’s personal lawyer, John Dowd, resigned. On the surface, it doesn’t seem like a big deal. Nearly 40 Trump Administration aids and officials have resigned or been fired since inauguration day.

Recent revelation may signal that Dowd’s departure is a bigger deal than originally thought. The New York Times reported this week that Dowd discussed the possibility of a presidential pardon with lawyers for Michael Flynn and Paul Manafort.

Flynn, the former national security adviser to the president, pleaded guilty to lying to the FBI about conversations with Russia’s ambassador. Manafort, a former Trump campaign manager, is charged in a “scheme” in which he allegedly laundered $30 million, failed to pay taxes for almost 10 years, and used real estate he owned to fraudulently secure more than $20 million in loans.

The president has the authority to pardon anyone. However, if the pardon is self-serving — an effort to muzzle potential witnesses in an investigation involving the president — then that could be obstruction of justice.

Fordham University Law School professors Jed Shugerman and Ethan J. Leib recently wrote in the Washington Post that “the Constitution, correctly understood, imposes limits on a president’s ability to grant pardons if they are issued for the purpose of self-protection.”

Shugerman and Leib suggest the answer “lies in a neglected part of the Constitution: Article II, Section 3, which directs that the president “shall take Care that the Laws be faithfully executed.’”

If the president pardons Flynn and Manafort primarily out of a motivation to protect himself, those pardons may be invalid as disloyal and federal courts could allow those prosecutions to proceed even with a presidential pardon.

The “Take Care Clause,” as it is referred to, is also the provision that provides the authority to prosecutors as appointees of the president. The United States Supreme Court has ruled that prosecutors “(A)re designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’”

Ironically, the clause that could limit the president’s authority to pardon is the very provision that provides the president the authority to enforce the laws and exercise the executive branch of government’s prosecutorial function.

Shugerman and Leib wrote, “Our Constitution’s designers wanted public officials to be subject to the same kinds of fiduciary obligations that CEOs, trustees and lawyers are routinely held to in the private sector. Those duties prohibit self-dealing and acting under a conflict of interest.

Therefore, “self-pardoning” or pardoning your closest associates for self-interested reasons should not pass legal muster, because it violates the fiduciary law of public office.”

Political pardons are nothing new, but using the authority for self-dealing is.

President Gerald Ford pardoned Richard Nixon after he resigned. Ford pardoned the man who made him president one month earlier. Ford said he did it to end a “national nightmare.”

President Bill Clinton pardoned wealthy businessman Marc Rich in the waning days of his administration after Rich’s ex-wife donated to Clinton’s legal defense fund.

President George H. W. Bush said “honor, decency and fairness” prompted the pardon of former Reagan Administration defense secretary Caspar Weinberger, who was under indictment at the time for lying to Congress during the Iran-Contra investigation.

During the Reagan Administration a federal court ruled, “The prosecutorial function, and the discretion that accompanies it, is thus committed by the Constitution to the executive, and the judicial branch’s deference to the executive on prosecutorial decision-making is grounded in the constitutional separation of powers.”

The Constitution provides the president with the authority to faithfully execute the laws of the land and appoint prosecutors to carry out that authority. The president also possesses the authority to relieve an individual from the burden of prosecution or conviction. Both must be carried out in good faith and with fidelity — absent the influence of personal advantage.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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